A BILL to amend and reenact §15-12-2, §15-12-5 and §15-12-8 of the
Code of West Virginia, 1931, as amended; and to amend and
reenact §49-5-13b of said code, all relating to authorizing a
court to require a convicted juvenile sex offender whose
underlying offense constitutes a first or second degree sexual
assault and who is sixteen years of age or older to register
as a sex offender; and maintaining confidentiality of juvenile
sex offender registration information except for disclosure to
law enforcement, school administration and counsel until the
juvenile attains the age of eighteen years.

Be it enacted by the Legislature of West Virginia:

That §15-12-2, §15-12-5 and §15-12-8 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; and that §49-5-13b of said code be amended and reenacted, all to read as
follows:

CHAPTER 15. PUBLIC SAFETY.

ARTICLE 12. SEX OFFENDER REGISTRATION ACT.

§15-12-2. Registration.

(a) The provisions of this article apply both retroactively
and prospectively.

(b) Any person who has been convicted of an offense or an
attempted offense or has been found not guilty by reason of mental
illness, mental retardation or addiction of an offense under any of
the following provisions of chapter sixty-one of this code or under
a statutory provision of another state, the United States Code or
the Uniform Code of Military Justice which requires proof of the
same essential elements shall register as set forth in subsection
(d) of this section and according to the internal management rules
promulgated by the superintendent under authority of section
twenty-five, article two of this chapter:

(1) Article eight-b, including the provisions of former
section six of said article, relating to the offense of sexual
assault of a spouse, which was repealed by an Act of the
Legislature during the year two thousand legislative session;

(2) Article eight-c;

(3) Sections five and six, article eight-d;

(4) Section fourteen, article two;

(5) Sections six, seven, twelve and thirteen, article eight;
or

(6) Section fourteen-b, article three-c, as it relates to
violations of those provisions of chapter sixty-one listed in this
subsection.

(c) Any person who:

(1) Has been convicted of a criminal offense and the
sentencing judge made a written finding that the offense was
sexually motivated; or

(2) Is required to register by a court order issued pursuant
to subdivision (5), subsection (a), section thirteen-b, article
five, chapter forty-nine of this code,

shall also register as set forth in this article.

(d) Persons required to register under the provisions of this
article shall register in person at the West Virginia State Police
detachment in the county of his or her residence, the county in
which he or she owns or leases habitable real property that he or
she visits regularly, the county of his or her place of employment
or occupation and the county in which he or she attends school or
a training facility, and in doing so, provide or cooperate in
providing, at a minimum, the following when registering:

(1) The full name of the registrant, including any aliases,
nicknames or other names used by the registrant;

(2) The address where the registrant intends to reside or
resides at the time of registration, the address of any habitable
real property owned or leased by the registrant that he or she
regularly visits: Provided, That a post office box may not be
provided in lieu of a physical residential address, the name and
address of the registrant’s employer or place of occupation at the
time of registration, the names and addresses of any anticipated
future employers or places of occupation, the name and address of
any school or training facility the registrant is attending at the
time of registration and the names and addresses of any schools or
training facilities the registrant expects to attend;

(3) The registrant’s social security number;

(4) A full-face photograph of the registrant at the time of
registration;

(5) A brief description of the crime or crimes for which the
registrant was convicted;

(6) Fingerprints;

(7) Information related to any motor vehicle, trailer or motor
home owned or regularly operated by a registrant, including vehicle
make, model, color and license plate number: Provided, That for
the purposes of this article, the term “trailer” shall mean travel
trailer, fold-down camping trailer and house trailer as those terms
are defined in section one, article one, chapter seventeen-a of
this code;

(8) Information relating to any Internet accounts the
registrant has and the screen names, user names or aliases the
registrant uses on the Internet; and

(9) Information related to any telephone or electronic paging
device numbers that the registrant has or uses, including, but not
limited to, residential, work and mobile telephone numbers; and

(10) If the registrant is a juvenile, the physical address and
telephone of the registrant’s parent(s) or legal guardian(s) and
any other relative or person with whom the registrant regularly
engages in overnight visits.

(e) (1) On the date that any person convicted or found not
guilty by reason of mental illness, mental retardation or addiction
of any of the crimes listed in subsection (b) of this section,
hereinafter referred to as a “qualifying offense”, including those
persons who are continuing under some post-conviction supervisory
status, are released, granted probation or a suspended sentence,
released on parole, probation, home detention, work release,
conditional release, inpatient treatment facility or juvenile
detention facility or any other release from confinement, the
Commissioner of Corrections, regional jail administrator, city
official or sheriff operating a jail, administrator of the
treatment or juvenile detention facility or Secretary of the
Department of Health and Human Resources who releases the person
and any parole or probation officer who releases the person or
supervises the person following the release, shall obtain all
information required by subsection (d) of this section prior to the
release of the person, inform the person of his or her duty to
register and send written notice of the release of the person to
the State Police within three business days of receiving the
information. The notice must include the information required by
said subsection. Any person having a duty to register for a
qualifying offense shall register upon conviction, unless that
person is confined or incarcerated, in which case he or she shall
register within three business days of release, transfer or other
change in disposition status.

(2) Notwithstanding any provision of this article to the
contrary, a court of this state shall, upon presiding over a
criminal matter resulting in conviction, a disposition under
subdivision (5), subsection (a), section thirteen-b, article five,
chapter forty-nine of this code or a finding of not guilty by
reason of mental illness, mental retardation or addiction of a
qualifying offense, cause, within seventy-two hours of entry of the
commitment or sentencing order, the transmittal to the sex offender
registry for inclusion in the registry all information required for
registration by a registrant as well as the following non-identifying information regarding the victim or victims:

(A) His or her sex;

(B) His or her age at the time of the offense; and

(C) The relationship between the victim and the perpetrator.

The provisions of this paragraph do not relieve a person
required to register pursuant to this section from complying with
any provision of this article.

(f) For any person determined to be a sexually violent
predator, the notice required by subsection (d) of this section
must also include:

(1) Identifying factors, including physical characteristics;

(2) History of the offense; and

(3) Documentation of any treatment received for the mental
abnormality or personality disorder.

(g) At the time the person is convicted, required to register
pursuant to an order entered under subdivision (5), subsection (a),
section thirteen-b, article five, chapter forty-nine of this code,
or found not guilty by reason of mental illness, mental retardation
or addiction in a court of this state of the crimes set forth in
subsection (b) of this section, the person shall sign in open court
a statement acknowledging that he or she understands the
requirements imposed by this article. The court shall inform the
person so convicted of the requirements to register imposed by this
article and shall further satisfy itself by interrogation of the
defendant or his or her counsel that the defendant has received
notice of the provisions of this article and that the defendant
understands the provisions. The statement, when signed and
witnessed, constitutes prima facie evidence that the person had
knowledge of the requirements of this article. Upon completion of
the statement, the court shall provide a copy to the registry.
Persons who have not signed a statement under the provisions of
this subsection and who are subject to the registration
requirements of this article must be informed of the requirement by
the State Police whenever the State Police obtain information that
the person is subject to registration requirements.

(h) (1) The State Police shall maintain a central registry of
all persons who register under this article and shall release
information only as provided in this article.

(2) Information maintained on juveniles required to register
by a court order issued under subdivision (5), subsection (a),
section thirteen-b, article five, chapter forty-nine of this code,
shall be confidential and may be disclosed only as authorized under
section five of this article.

(3) Notwithstanding any other provision of this code to the
contrary, the provisions of this article with respect to special
reporting requirements, confidentiality and disclosure are not
applicable on or after that juvenile attains the age of eighteen
years. Upon the date the juvenile attains the age of eighteen
years, he or she shall thereafter be subject to each and every
provision of this article as if he or she had been convicted of a
violation of section three or four, article eight-b, chapter sixty-one of this code. Notwithstanding any provision of article five,
chapter forty-nine of this code, on and after the date the juvenile
attains the age of eighteen years, upon request of the West
Virginia State Police, the circuit clerk of the court in which the
the order was issued under subdivision (5), subsection (a), section
thirteen-b, article five, chapter forty-nine of this code shall
deliver to the West Virginia State Police a copy of the records of
the juvenile proceeding in which the order was issued without cost
and without order of the court. Those records may be used for all
purposes under the provisions of this article to the extent that
the same would otherwise be used if they were a courts records of
the proceedings under he or she had been an adult and convicted of
a violation of section three or four, article eight-b, chapter
sixty-one of this code.

(3) The information required to be made public by the State
Police by subdivision (2), subsection (b), section five of this
article is to be accessible through the Internet.

(4) No information relating to telephone or electronic paging
device numbers a registrant has or uses may be released through the
Internet.

(i) For the purpose of this article, “sexually violent
offense” means:

(1) Sexual assault in the first degree as set forth in section
three, article eight-b, chapter sixty-one of this code or of a
similar provision in another state, federal or military
jurisdiction;

(2) Sexual assault in the second degree as set forth in
section four, article eight-b, chapter sixty-one of this code or of
a similar provision in another state, federal or military
jurisdiction;

(3) Sexual assault of a spouse as set forth in the former
provisions of section six, article eight-b, chapter sixty-one of
this code, which was repealed by an Act of the Legislature during
the two thousand legislative session, or of a similar provision in
another state, federal or military jurisdiction;

(4) Sexual abuse in the first degree as set forth in section
seven, article eight-b, chapter sixty-one of this code or of a
similar provision in another state, federal or military
jurisdiction.

(j) For purposes of this article, the term “sexually
motivated” means that one of the purposes for which a person
committed the crime was for any person’s sexual gratification.

(k) For purposes of this article, the term “sexually violent
predator” means a person who has been convicted or found not guilty
by reason of mental illness, mental retardation or addiction of a
sexually violent offense and who suffers from a mental abnormality
or personality disorder that makes the person likely to engage in
predatory sexually violent offenses.

(l) For purposes of this article, the term “mental
abnormality” means a congenital or acquired condition of a person,
that affects the emotional or volitional capacity of the person in
a manner that predisposes that person to the commission of criminal
sexual acts to a degree that makes the person a menace to the
health and safety of other persons.

(m) For purposes of this article, the term “predatory act”
means an act directed at a stranger or at a person with whom a
relationship has been established or promoted for the primary
purpose of victimization.

(n) For the purposes of this article, the term “business
days”, means days exclusive of Saturdays, Sundays and legal
holidays as defined in section one, article two, chapter two of
this code.

§15-12-5. Distribution and disclosure of information; community
information programs by prosecuting attorney and State
Police; petition to circuit court.

(a) In the case of all persons required to register pursuant
to section two of this article, except juveniles required to
register by a court order issued under subdivision (5), subsection
(a), section thirteen-b, article five, chapter forty-nine of this
code, within five business days after receiving any notification as
described in this article, the State Police shall distribute a copy
of the notification statement to:

(1) The supervisor of each county and municipal
law-enforcement office and any campus police department in the city
and county where the registrant resides, owns or leases habitable
real property that he or she regularly visits, is employed or
attends school or a training facility;

(2) The county superintendent of schools in each county where
the registrant resides, owns or leases habitable real property that
he or she regularly visits, is employed or attends school or a
training facility;

(3) The child protective services office charged with
investigating allegations of child abuse or neglect in the county
where the registrant resides, owns or leases habitable real
property that he or she regularly visits, is employed or attends
school or a training facility;

(4) All community organizations or religious organizations
which regularly provide services to youths in the county where the
registrant resides, owns or leases habitable real property that he
or she regularly visits, is employed or attends school or a
training facility;

(5) Individuals and organizations which provide day care
services for youths or day care, residential or respite care, or
other supportive services for mentally or physically incapacitated
or infirm persons in the county where the registrant resides, owns
or leases habitable real property that he or she regularly visits,
is employed or attends school or a training facility; and

(6) The Federal Bureau of Investigation (FBI).

(b)(1) In the case of juveniles required to register by a
court order issued under subdivision (5), subsection (a), section
thirteen-b, article five, chapter forty-nine of this code, within
five business days after receiving any notification as described in
this article, the State Police shall distribute a copy of the
notification statement only to:

(A) The superintendent of the county school system where the
juvenile attends school or intends to attend school;

(B) The administrator of a training facility where the
juvenile is enrolled or intends to enroll; and

(C) Counsel for the juvenile, upon request.

(2) Notification pursuant to this subsection shall inform the
recipient that the information contained in the notification may be
disclosed to the school or training facility, upon request, and is
strictly confidential.

(c) Information concerning persons whose names are contained
in the sex offender registry is not subject to the requirements of
the West Virginia Freedom of Information Act, as set forth in
chapter twenty-nine-b of this code, and may be disclosed and
disseminated only as otherwise provided in this article and as
follows:

(1) When a person has been determined to be a sexually violent
predator under the terms of section two-a of this article, the
State Police shall notify the prosecuting attorney of the county in
which the person resides, owns or leases habitable real property
that he or she regularly visits, is employed or attends a school or
training facility. The prosecuting attorney shall cooperate with
the State Police in conducting a community notification program
which is to include publication of the offender’s name, photograph,
place of residence, location of regularly visited habitable real
property owned or leased by the offender, county of employment and
place at which the offender attends school or a training facility,
as well as information concerning the legal rights and obligations
of both the offender and the community. Information relating to
the victim of an offense requiring registration may not be released
to the public except to the extent the prosecuting attorney and the
State Police consider it necessary to best educate the public as to
the nature of sexual offenses: Provided, That no victim’s name may
be released in any public notification pursuant to this subsection.
No information relating to telephone or electronic paging device
numbers a registrant has or uses may be released to the public with
this notification program. The prosecuting attorney and State
Police may conduct a community notification program in the county
where a person who is required to register for life under the terms
of subdivision (2), subsection (a), section four of this article
resides, owns or leases habitable real property that he or she
regularly visits, is employed or attends a school or training
facility. Community notification may be repeated when determined
to be appropriate by the prosecuting attorney;

(2) The State Police shall maintain and make available to the
public at least quarterly the list of all persons who are required
to register for life according to the terms of subdivision (2),
subsection (a), section four of this article. No information
concerning the identity of a victim of an offense requiring
registration or telephone or electronic paging device numbers a
registrant has or uses may be released with this list. The method
of publication and access to this list are to be determined by the
superintendent; and

(3) A resident of a county may petition the circuit court for
an order requiring the State Police to release information about
persons that reside or own or lease habitable real property that
the persons regularly visit in that county and who are required to
register under section two of this article. The court shall
determine whether information contained on the list is relevant to
public safety and whether its relevance outweighs the importance of
confidentiality. If the court orders information to be released,
it may further order limitations upon secondary dissemination by
the resident seeking the information. In no event may information
concerning the identity of a victim of an offense requiring
registration or information relating to telephone or electronic
paging device numbers a registrant has or uses be released.

(c)(d) The State Police may furnish information and
documentation required in connection with the registration to
authorized law-enforcement, campus police and governmental agencies
of the United States and its territories, of foreign countries duly
authorized to receive the same, of other states within the United
States and of the State of West Virginia upon proper request
stating that the records will be used solely for
law-enforcement-related purposes. The State Police may disclose
information collected under this article to federal, state and
local governmental agencies responsible for conducting
preemployment checks. The State Police also may disclose
information collected under this article to the Division of Motor
Vehicles pursuant to the provisions of section three, article two,
chapter seventeen-b of this code.

(d)(e) An elected public official, public employee or public
agency is immune from civil liability for damages arising out of
any action relating to the provisions of this section except when
the official, employee or agency acted with gross negligence or in
bad faith.

§15-12-8. Failure to register or provide notice of registration
changes; penalty; penalty for aiding and abetting.

(a) Each time a person has a change in any of the registration
information as required by this article and knowingly fails to
register the change or changes, each failure to register each
separate item of information changed shall constitute a separate
offense under this section.

(b) Except as provided in this section, any person required to
register for ten years pursuant to subdivision (1), subsection (a),
section four of this article who knowingly provides materially
false information or who refuses to provide accurate information
when so required by the terms of this article, or who knowingly
fails to register or knowingly fails to provide a change in any
required information as required by this article, is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than two hundred fifty dollars nor more than ten thousand dollars
or confined in jail not more than one year, or both. Any person
convicted of a second offense under this subsection is guilty of a
felony and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one year nor more than five
years. Any person convicted of a third or subsequent offense under
this subsection is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility for not less
than five nor more than twenty-five years.

(c) Any person required to register for life pursuant to this
article who knowingly provides materially false information or who
refuses to provide accurate information when so required by the
terms of this article, or who knowingly fails to register or
knowingly fails to provide a change in any required information as
required by this article, is guilty of a felony and, upon
conviction thereof, shall be imprisoned in a state correctional
facility for not less than one year nor more than five years. Any
person convicted of a second or subsequent offense under this
subsection is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility for not less
than ten nor more than twenty-five years.

(d) In addition to any other penalty specified for failure to
register under this article, any person under the supervision of a
probation officer, parole officer or any other sanction short of
confinement in jail or prison who knowingly refuses to register or
who knowingly fails to provide a change in information as required
by this article shall be subject to immediate revocation of
probation or parole and returned to confinement for the remainder
of any suspended or unserved portion of his or her original
sentence.

(e) Notwithstanding the provisions of subsection (c) of this
section, any person required to register as a sexually violent
predator pursuant to this article who knowingly provides materially
false information or who refuses to provide accurate information
when so required by terms of this article or who knowingly fails to
register or knowingly fails to provide a change in any required
information as required by this article is guilty of a felony and,
upon conviction thereof, shall, for a first offense, be confined in
a state correctional facility not less than two nor more than ten
years and for a second or subsequent offense, is guilty of a felony
and shall be confined in a state correctional facility not less
than fifteen nor more than thirty-five years.

(f) Any person who knows or who has reason to know that a sex
offender is not complying, or has not complied, with the
requirements of this section and who, with the intent to assist the
sex offender in eluding a law-enforcement agency that is seeking to
find the sex offender to question the sex offender about, or to
arrest the sex offender for, his or her noncompliance with the
requirements of this section:

(1) Withholds information from, the law-enforcement agency
about the sex offender’s noncompliance with the requirements of
this section and, if known, the whereabouts of the sex offender;
or

(2) Harbors, or attempts to harbor, or assists another person
in harboring or attempting to harbor, the sex offender; or

(3) Conceals or attempts to conceal, or assists another person
in concealing or attempting to conceal, the sex offender; or

(4) Provides information to the law-enforcement agency
regarding the sex offender which the person knows to be false
information is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than two hundred fifty dollars nor
more than ten thousand dollars or confined in jail not more than
one year, or both: Provided, That where the person assists or
seeks to assist a sex offender whose violation of this section
would constitute a felony, the person shall be guilty of a felony
and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one year nor more than five
years.

(g) The State Police shall notify the court of the failure of
any juvenile to register as required by an order issued under
subdivision (5), subsection (a), section thirteen-b, article five,
chapter forty-nine of this code, within five business days
following the last day upon which the juvenile had the duty to
register. In addition to notifying the court of the juvenile’s
failure to register, the State Police shall send a copy of this
notice, by certified mail, to the juvenile, the juvenile’s parents
and legal counsel.

CHAPTER 49. CHILD WELFARE.

ARTICLE 5. JUVENILE PROCEEDINGS.

§49-5-13b. Authority of the courts to order fines; revocation of
vehicle privileges and restitution; and juvenile sex
offender registration.

(a) In addition to the methods of disposition provided in
section thirteen of this article, the court may enter an order
imposing one or more of the following penalties, conditions and
limitations:

(1) Impose a fine not to exceed $100 upon suchthe child;

(2) Require the child to make restitution or reparation to the
aggrieved party or parties for actual damages or loss caused by the
offense for which the child was found to be delinquent, or if the
child does not make full restitution, require the custodial parent
or parents, as defined in section two, article seven-a, chapter
fifty-five, of the child to make partial or full restitution to the
victim to the extent the child fails to make full restitution;

(3) Require the child to participate in a public service
project under such conditions as the court prescribes, including
participation in the litter control program established pursuant to
the authority of section three, article fifteen-a, chapter
twenty-two of this code;

(4) When the child is fifteen years of age or younger and has
been adjudged delinquent, the court may order that the child is not
eligible to be issued a junior probationary operator’s license or
when the child is between the ages of sixteen and eighteen years
and has been adjudged delinquent, the court may order that the
child is not eligible to operate a motor vehicle in this state and
any junior or probationary operator’s license shall be surrendered
to the court. SuchThe child’s driving privileges shall be
suspended for a period not to exceed two years and the clerk of the
court shall notify the Commissioner of the Division of Motor
Vehicles of suchthe order;

(5) When the child is sixteen years of age or older and is
adjudicated delinquent for violation of section three or four,
article eight-b, chapter sixty-one of this code, the court may
enter an order requiring the child to register as a sex offender
pursuant to article twelve, chapter fifteen of this code. The
order shall be delivered to the West Virginia State Police and
shall be confidential and may be disclosed only as authorized under
section five, article twelve, chapter fifteen of this code.

(b) Nothing herein stated shallThis section does not limit
the discretion of the court in disposing of a juvenile case
Provided,except that the juvenile shall not be deniedcourt may
not deny probation or any other disposition pursuant to this
article because the juvenile is financially unable to pay a fine or
make restitution or reparation Provided, however,and that all
penalties, conditions and limitations imposed under this section
shall be based upon a consideration by the court of the seriousness
of the offense, the child’s ability to pay and a program of
rehabilitation consistent with the best interests of the child.

(c) Notwithstanding any other provisions of this code to the
contrary, in the event a child charged with delinquency under this
chapter is transferred to adult jurisdiction and there convicted,
the court may nevertheless, in lieu of sentencing such person as an
adult, make its disposition in accordance with this section.